Date of Filing:27/01/2016

Date of Order:14/02/2019

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 14^TH DAY OF FEBRUARY 2019

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.121/2016

Vs

ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This Complaint is filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service directing the O.Ps to pay Rs.3,32,000/- being the cost of the repair of the car and Rs.43,670/- collected towards transport charges and further OPs to provide a new  Hyundai  Elantra Car of the same make or its cost and further to pay Rs.2,00,000/- towards damages for causing mental agony, inconvenience and hardship and financial loss and such other reliefs as this Hon’ble Forum deems fit. 

2.     The brief facts of the complaint are: Complainant No.1 is the mother of the 2^ndComplainant who is son of 1^st Complainant residing in Prestige Silver Dale, Junnasandra Main Road, Bangalore -560 035. O.Ps are the transporters and luggage carriers, vehicle and house hold articles transporters to all over India.

3.     It is the case of the complainant that they own a white colour Hyundai Elentra car bearing Reg No.AS-23-K-9511.  Since they were natives of Margherita, Tinsukia District, Assam State, and as they wanted to transport the said car to Bengaluru and since O.Ps have made a good name and trust worthy people in moving and packing and transporting the belongings, the vehicle and other articles worldwide, having vast experience, engaged their services for transportation of their car by paying Rs.43,670/- as transportation and service charges to the O.Ps and handed over the said vehicle for transportation to Bangalore on 09.10.2015.

4.     The persons belonging to O.P took possession of the said vehicle and drove it for about 45 km to their office in Tinsukia on 09.10.2015. They were supposed to deliver the said vehicle on 26.10.2015. On repeated enquiry, they found that the said vehicle reached Bangalore on 06.11.2015 only and they could not trace and track the movement of the lorry in which their car was being transported as the GPS was not working. Upon reaching the destination belatedly, O.P did not deliver the said car to their residence as agreed even after reaching the office /godown of the 3^rd O.P.  On enquiry with them, it was informed that the car was not starting and has ignition problem and hence they could not deliver to the door of the complainant.  When the car was handed over to O.P to be transported to Bengaluru at Margarita, it was in a good and running condition.

5.   In view of the information given regarding non-starting of the car, the complainants had suspicion and doubt as to something has happened during transportation.  Hence they insisted to give delivery of the car in presence of an authorized service station and to get the opinion of the expert regarding the condition of the car and took the delivery of the same on 06.11.2015 in the service station of Trident Automobiles (Pvt.) Ltd at Amarjyothi layout, Intermediate Ring Road, Domlur, Bangalore.

6.     It was found that the car was not starting and it was completely wet and water had entered inside the car, and to the engine, and the engine oil found mixed with water, the battery had totally gone dry.   While taking delivery, the said aspect had been mentioned by the authorized agent. Further at the time of shipment, O.P had noted the scratches on the side of the said car.  It has just covered 45 km from Margarita to the place of shipment for transit.  At the time of taking delivery, it was found that it has covered 120 km which raises the suspicion regarding the misusing of the car by the O.ps.  The O.Ps have negligently handed the car during the transportation. They have been carless in that respect.  The estimate given by the Trident Automobiles for setting right the problem of the vehicle was for Rs.3,62,084/-.  The car was purchased in the year 2013 and was in best condition when it was handed over to O.P for transportation. To get the car repaired, they have paid Rs.3,32,000/- to Trident Automobiles.  The service rendered by O.P is far from satisfactory, negligent one and careless one which has caused damage to the vehicle and there is delay in transpiration and handing over the said vehicle. Further the wife of the 2^nd complainant was pregnant and was expecting the delivery during Feb-2016.

7.     Since the delivery of the vehicle in a good condition by O.P was delayed due to their negligent act, lot of inconvenience was faced by the pregnant lady. It has also curtailed the free movements of the 1^st Complainant as she had to depend on other car to take medication.  Further Complainant No.2 being in the post of vice president of an IT company had to travel a lot and because of the delay by O.P, he had to hire taxis which resulted in wastage of precious time and had to cancel several meetings and programs. Had the O.Ps took safety measures, due care and attention while transporting the vehicle, no damage would have occurred to the vehicle and inconvenience to the complainant. Hence they had to issue a legal notice on 24.11.2015 calling the O.Ps to pay the cost of the repair and for damages of Rs.2,00,000/- towards sufferance of mental agony and inconvenience caused and hardship faced and financial loss suffered. Though the same was served, they have issued a untenable reply on 22.12.2015 and false statement have been made by them. The act of the O.Ps is a sheer negligence, deficiency in service and lot of omissions and commissions involved causing mental agony, physical strain and financial loss. Hence the complaint.

8.     Upon the service of notice, O.P No.1 to 3 appeared before the forum through their common advocate and filed common version denying all the allegations made against it and also alleged that the complainant concealed the material information and deliberately suppressed the materials and have sought unreasonable compensation by leveling false, baseless allegations.  They have contended that only after satisfying with their reputation, complainants approached their branch at Tinsukia for transportation of their car AS-23-K-9511 to Bangalore and as per the quotation given, they paid Rs.43,672/- towards the transportation.   A car inventory accessories declaration form dated 09.10.2015 was prepared in respect of the said vehicle. It is mentioned therein that the vehicle without comprehensive insurance or covering transit risk insurance will not be accepted for transportation. The declaration contained the existing external conditions of the said car. Both sides of the front bumper had scratches. The bonnet had scratches. A big line scratch and scratches and dents over left side front door scratches and dents over left side back door, both side scratches on back bumper, scratches and dents on the front and back door of the right side were mentioned.

9.     As per the terms and conditions, carriers will not be liable for any defect or malfunctioning of damages to any internal part of the car including engine, battery, AC and any other accessory as the carrier is not technically qualified to assess  its actual functioning at the time of booking and delivering the same. 

(ii) Car will be taken by road from original point to local loading point and from unloading point to Door delivery point for loading and unloading from the car carrier for its further movement. Consignor should keep minimum 15 liters fuel in car tank for this purpose.

(iii) Car will be running on road about 150 kms (Aprox.) depending on the city.

(iv) Car is being transported under owner’s risk. Consignor should directly take proper insurance cover for all types of transit risk and the carrier will not be liable for any damage including due to accident  etc. or for whatsoever reasons. However carrier will carry out legal formalities like lodging complaint/panchanama etc. in police station.

(v) Consignor will pursue his case, if any, directly with insurance company for any claim arising out of any unforeseen incident.

10.   The O.Ps are fully aware of their responsibility in respect of the transportation of the vehicle. They have rich experience in transporting the same. It is further averred that the said car was driven from Margarita to Tinsukia by road and from there to Kolkatta by Market Car Carrier on 13.10.2015 and again from Kolkata to Bengaluru through Company Car Carrier.  It was reported to them by the driver while driving the vehicle from Margarita to Tinsukia that the car was giving trouble and engine used to stop the function.    The same was not taken very seriously. The car was driven hardly on the road.

11. The actual trouble started when it reached Bangalore and was to be driven on the road at Bangalore for delivery to the complainant.  They are not in a position to offer any explanation as to how the water entered inside the engine and mixed with engine oil and the battery. The allegation of driving the vehicle for about 120 km was all false. The complainant was aware of the distance likely to be covered.  As per the declaration form, the car to run on road for about 150 km depending upon the cities i.e. up to ramp at Tinsukia and from there to the office at Bengaluru.

12.          It is contended that the car carrier has capacity of five to seven cars. Only after the requisite number of car available for transportation to a particular destination, or enroute, the car remain loaded till they get the minimum number of cars for transportation in order to achieve the financial viability. Hence it may likely to take additional time to reach the destination.  No damage has been caused to the car or to its engine or to any other parts of the car when the same was in its position. The car was having some damage as mentioned in the booking form and was also having starting problem from the very beginning. Hence O.Ps have not damaged the car and the estimate and repair done to the car is not known to them. The pregnancy of the daughter-in-law of the complainant is not known to the O.P and also they were not aware as to the requirement of the vehicle. It is just an imaginary ground to have mercy of this Forum to have more compensation.

13.   It is further contended that they are reputed packers and movers in India and known for their service. They are professional in transporting materials.  It is the O.Ps to have undergone mental agony and torture due to the inhuman behavior of the complainant. There is no deficiency or negligence on their part and the complainants are not entitled for any of the claim made in the complaint. The claim is imaginary, illegal vexatious and hence prayed the Forum to dismiss the complaint.

14.      In order to substantiate their case, Complainant and O.Ps have filed their affidavit and produced documents. Arguments heard. The following points arise for our consideration:-

                   (1)   Whether the complainant has proved

      deficiency in service on the part of the O.Ps?

(2)  Whether the complainant is entitled to

     the relief prayed for in the complaint?

15.   Our answers to the above points are:-

POINT 1:              In the Affirmative.

POINT 2:             Partly in the Affirmative

                            As per the final order:

REASONS

POINT No.1:-

16.   On perusal of the pleadings of the parties and the documents produced by them, it becomes clear that the complainants being the owners of the said car bearing Reg. No.AS-23-K-9511 handed over the same at Margarita to the O.Ps for transporting the same to Bengaluru.  It is also evident that a sum of Rs.43,670/- has been received by the OP for transporting the same to Bengaluru.  It is also evident that the value of the vehicle mentioned is Rs.9,30,000/- and O.Ps have also mentioned the scratches on the said vehicle in the Document named as Accessories declaration in Doc.No.2. It is not at all mentioned in the said document that the said vehicle was having starting problem and had stopped at several places while driving from Margarita to Tinsukia. Doc.No.4 the Job card issued by Trident Automobile Pvt. Ltd before whom the OPs delivered the vehicle to the complainant wherein it is mentioned as:-

“The vehicle was received on 06/11/2015  near trident Hyundai Domlur service center at 3.00 pm

Observations: Battery was drain out (weak) vehicle not startins. After push start of the car:  Found/excessive while smoke from exhaust engine noise too high water splashing out from exhaust muffles, water found inside the car carpet is full wet condition starts motor burn condition.

Air filter wet condition

Water found in air filter cover,

Water found in fuse box (engine compartment)

Engine oil level was high and also observed the oil was mixed with water.”

17.   Afterwards only, an estimate was done as per Doc.No.5 for the said repair work for Rs.3,62,084/-.  Notice demanding the payment of the said amount has been issued to the O.Ps which has been received for which O.P has replied. It is to be observed here that the O.Ps have not explained as to how the water has entered into the vehicle and also to the engine of the car and also mixed with the fuel of the car. O.Ps are the better persons to explain as to how the water has entered into the transport vehicle in which the car of the complainant was being carried and also to explain as to how the water entered into the said car. Merely saying that it do not know as to how water has entered in the car, and do not know as to how it has happened do not absolve from the liability of the O.Ps.  In view of this, we are of the opinion that there is negligence on the part of the O.Ps in not taking proper care while transporting the said vehicle as an ordinary prudent transporter would have taken under the circumstances. Hence there is deficiency in service and we answer Point No.1 in the Affirmative.

POINT NO.2:

18.   The complainant has sought from the O.P sum of Rs.3,32,000/- being the cost of the repair charges and Rs.43,670/- being the transportation charges. Further he has also sought from this forum an order for replacing the said car with a new one and Rs.2,00,000/- towards damages and Rs.50,000/- towards litigation and cost and other expenses.

19.   It is to be noted here that the complainant agreed to get the vehicle transported through O.Ps on payment of the transportation charges i.e., Rs.43,670/-. Since the O.Ps have transported the said vehicle from Tinsukia to Bengaluru, complainant is not entitle for refund of the said transportation charges.

20.   Complainant has produced the estimate in respect of the repair of the said vehicle and it is for Rs.3,62,084/-. The spare parts charges is mentioned Rs.2,92,471/- and the labour charges Rs.69,612/-. He has also produced the tax invoice for getting the vehicle repaired with Trident Automobiles Ltd., Hosur Road, Bengaluru wherein they have paid Rs.3,31,940/- for repair of the said vehicle.  Rounding of the same, it can be seen that the complainant has paid Rs.3,32,000/- towards getting the said car repaired for the problem that has taken place due to the seepage of water to the said car while transporting the same under the control of O.P. Hence we are of the opinion that the O.P has to pay the said amount to the complainant with interest at 12% per annum from the date of payment of the said amount to the Trident automobiles i.e. 09.01.2016 the day on which the complainant after getting the said vehicle repaired took the delivery of the same.  No contradictory evidence is placed by O.P in that respect.

21.   Further though the complainant has stated that she was put to inconvenience for not getting the vehicle in time and could not take her daughter-in-law who was pregnant at that time to the hospital, no evidence has been placed in that respect. Inspite of it, when a person has been accustomed to the transportation by car and if the car is not available for movement naturally, the said person will be put to inconvenience and he/she had to make some alternate arrangement by getting a taxi and paying the amount for the same and also for waiting for the same at times which put the person to inconvenience, hardship and under pressure.   Nearly for four months, the complainants were deprived of their vehicle from using the same. In view of this we are of the opinion that if a sum of Rs.20,000/- per month i.e. from November 2015 to December 2015 and December 2015 to January 2016 if ordered to be paid would meet the ends of justice in respect of the inconvenience caused to the complainant for depriving them from the services of their car in time.

22.            Further as they have been put to inconvenience, hardship, mental agony and physical strain we are of the opinion that if a sum of Rs.50,000/- towards damages and Rs.10,000/- towards litigation expenses and incidental expenses if ordered to be paid by the O.P to the complainant, would meet the ends of justice. Hence we answer Point No.2 Partly in the Affirmative and pass the following:

ORDER

1. The complaint is hereby partly allowed with cost.

2. O.P No.1 to 3 are jointly and severally hereby directed to pay a sum of Rs.3,32,000/- to the complainant along with interest at 12% per from 09.01.2016  till the date of payment of entire amount.

3. Further O.P No.1 to 3  are hereby directed to pay Rs.20,000/- per month i.e. November 2015 to December 2015 and December 2015 to January 2016 towards inconvenience caused to the complainant and to pay Rs.50,000/- towards compensation and Rs.10,000/-  towards cost of proceedings and litigation expenses.

4.  The O.Ps are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 14^th Day of FEBRUARY 2019)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

PW.1 –Sri Simanta Dutta -  Complainant No.2.

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1: Copy of the Registration Certificate.

Doc.No.2: Copies of the booking of delivering the car.

Doc.No.3: Copy of the invoice and receipt.

Doc.No.4: Copy of the Job card issued by O.Ps

Doc.No.5: Copy of the repair estimate issued by O.Ps.

Doc.No.6: Office copy of the legal notice dated 24.11.2015 issued to O.P by the complainants.

Doc.No.7: copy of the postal receipts 3 in Nos.

Doc.No.8: Copy of the postal acknowledgment 3 in No.s

Doc.No.9: Copy of the Reply Notice dated 02.12.2015.

Doc.No.10: Copy of Tax invoice issued by O.Ps.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Prabir Kumar Das, Authorised Signatory of O.Ps.

Copies of Documents produced on behalf of Opposite Party/s

- Nil -

MEMBER                        PRESIDENT